Increasingly, the rationale for implementing a records management and retention policy is not simply to manage space, data storage, and their associated costs, but also to limit legal fees, and increase certainty, in e-discovery. Limiting the number of records to be searched at the outset of e-discovery is the first and most important step in managing the process.
In many instances, the length of time a record must be kept is governed by statute or regulation. However, once that time requirement has passed, or in the absence of a specific retention requirement, the focus must shift to providing a rationale for keeping the record, as opposed to keeping all records by default. Although it may initially seem counterintuitive, an effective retention policy does not so much mandate record retention as plan their orderly destruction.
What to keep and why?
Records should be classified by role or use: for example, general business records (emails, correspondence, contracts, strategic plans), accounting records (accounts payable, bank accounts), taxation records, human resources documents, etc. Their useful lives as active documents can be informed by their classification. For example, is a record needed indefinitely, or only until it is superseded by a new version? Thought must also be given to how long after a document ceases to be in active use it may be needed to resolve a dispute.
Who decides and who destroys?
For many classes of documents, destruction can be programmed to occur at a certain point. However, other categories may need a legal or audit review before deciding on their destruction or retention, and this should be included in their classification.
Not only the judge, but also the record’s executioner should be specified, i.e.: who is responsible for actually destroying the records once their retention period has expired? Equally important is to ensure documents are not destroyed early, and that processes are in place to implement a “litigation hold,” and stop record destruction when litigation rears its head. Simply designating records for destruction, without assigning responsibility to ensure it takes place in adherence to the policy defeats the utility of a policy for e-discovery entirely, for three reasons.
Sufficiency of Scope and Proof of Absence
First, although an obvious point, the fewer records retained, the fewer documents to collect, review, and ultimately produce for discovery, and the lower the e-discovery cost. Without enforced destruction of records, this benefit is lost.
Second, a collateral purpose of a record retention policy is to know with certainty what has been retained, by which custodian, and where in the organization. This not only allows for relevant documents to be more easily found, but enables one to use search parameters, including date range, to narrow searches and be confident that they will catch relevant documents for production in e-discovery. If one cannot have confidence that certain parameters will in fact catch all relevant documents, then this benefit of a retention policy is lost. If challenged, one may need to expand a search, or be ordered by a court to do so.
Third, a retention policy enables one to explain to a court why a potentially relevant record no longer exists, preventing both fishing expeditions and accusations of spoliation. If one cannot show that documents are destroyed as planned, one may be forced to look for a proverbial needle in a haystack by an adversary. If documents were destroyed ahead of schedule, or destruction continued after a “litigation hold,” then one may be exposed to accusations of spoliation.
Having a clear and reliable retention policy is vital to managing the scope of electronic discovery, and having confidence in the integrity of one’s document production. To be effective for e-discovery, a policy must plan for and enforce destruction, satisfy an adversary as to completeness of production, and provide proof of some records’ absence.